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How Scalia Distorts the Framers

February 14, 2016

From the Archive: The late Supreme Court Justice Scalia put his right-wing ideology above any respect for the Constitution’s Framers, even resorting to a made-up view attributed to Alexander Hamilton in Scalia’s dissent to the landmark upholding of the Affordable Care Act, wrote Robert Parry in 2012.

By Robert Parry (Originally published on July 4, 2012)

Antonin Scalia and the three other right-wing justices who sought to strike down health-care reform cited no less an authority on the Constitution than one of its key Framers, Alexander Hamilton, as supporting their concern about the overreach of Congress in regulating commerce.

In their angry dissent on June 28, 2012, the four wrote: “If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, ‘the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor pro­fane.’” They footnoted Hamilton’s Federalist Paper No. 33.

U.S. Supreme Court Justice Antonin Scalia.

That sounds pretty authoritative, doesn’t it? Here’s Hamilton, one of the strongest advocates for the Constitution, offering a prescient warning about “Obamacare” from the distant past of 1788. Except that Scalia and his cohorts are misleading you. In effect, they turned Hamilton’s observation inside out.

In Federalist Paper No. 33, Hamilton was not writing about the Commerce Clause. He was referring to clauses in the Constitution that grant Congress the power to make laws that are “necessary and proper” for executing its powers and that establish federal law as “the supreme law of the land.”

Hamilton also wasn’t condemning those powers, as Scalia and his friends would have you believe. Hamilton was defending the two clauses by poking fun at the Anti-Federalist alarmists who had stirred up opposition to the Constitution with warnings about how it would trample America’s liberties. In the cited section of No. 33, Hamilton is saying the two clauses had been unfairly targeted by “virulent invective and petulant declamation.”

It is in that context that Hamilton complains that the two clauses “have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane.”

In other words, Scalia and the three other right-wingers did not only apply Hamilton’s comments to the wrong section of the Constitution but reversed their meaning. Hamilton was mocking those who were claiming that these clauses would be “the hideous monster.”

Twisting the Framers

It is ironic indeed that Hamilton’s words, countering alarmist warnings from his era’s conservatives, would be distorted by this era’s conservatives to spread new alarms about the powers of the Constitution.

Scalia’s distortion also underscores a larger tendency on the Right to fabricate a false founding narrative that transforms key advocates for a strong central government the likes of Alexander Hamilton and James Madison into their opposites, all the better to fit with the Tea Party’s fictional storyline.

Of course, Scalia’s deception would be an easy sell to typical Tea Party advocates, whose certainty about their made-up history would be reinforced as they pretend to stand with the Framers, complete with tri-corner hats from costume shops and bright-yellow “Don’t Tread on Me” flags.

Indeed, the Scalia-authored dissent reads more like a Tea Party manifesto than a carefully reasoned legal argument. The dissent sees the Affordable Care Act, which seeks to impose some rationality on America’s chaotic health-insurance system, as a step toward a despotic scheme that would “make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.”

Some Supreme Court watchers even suspect that it may have been Scalia’s intemperate tone that pushed Chief Justice John Roberts from a position of initially rejecting the Affordable Care Act outright as an unconstitutional use of the Commerce Clause to supporting its constitutionality under congressional taxing powers.

The four more liberal justices endorsed the law’s constitutionality under the Commerce Clause but also joined with Roberts on his tax conclusion, thus upholding the law and sending Scalia and his three right-wing cohorts Anthony Kennedy, Clarence Thomas and Samuel Alito into a further paroxysm of rage.

What becomes clear in reading the dissent is that not only do the right-wing justices misrepresent the views of the Framers regarding the Commerce Clause, these justices misunderstand a central reality of why the Framers wrote the Constitution in 1787. The Framers junked the states-rights-oriented Articles of Confederation in favor of the Constitution because they wanted to solve the nation’s problems.

Founding Pragmatists

Led by James Madison and George Washington, the drafters of the Constitution crafted a profoundly pragmatic document, filled not only with political compromises to pull together the 13 squabbling states but looking for practical solutions to address the challenges of a new, sprawling and disparate nation.

The Commerce Clause, which grants Congress the power to regulate interstate commerce, was not some afterthought but rather one of Madison’s most cherished ideas, as Justice Ruth Bader Ginsburg noted in her opinion on behalf of the Court’s four more liberal members.

Citing a 1983 ruling entitled EEOC v. Wyoming, Ginsburg noted that “the Commerce Clause, it is widely acknowledged, ‘was the Framers’ response to the central problem that gave rise to the Constitution itself.’”

That problem was a lack of national coordination on economic strategy, which hindered the country’s development and made the nation more vulnerable to commercial exploitation by European powers, which looked to divide and weaken the newly independent United States.

Ginsburg wrote: “Under the Articles of Confederation, the Constitution’s precursor, the regulation of commerce was left to the States. This scheme proved unworkable, because the individual States, understandably focused on their own economic interests, often failed to take actions critical to the success of the Nation as a whole.”

The Articles of Confederation, which governed the country from 1777 to 1787, had explicitly asserted the “independence” and “sovereignty” of the 13 individual states, making the central government essentially a supplicant to the states for necessary financial support.

After watching the Continental Army suffer when the states reneged on promised funds, General Washington felt a visceral contempt for the concept of sovereign and independent states. He became a strong supporter of Madison’s idea of a stronger central government, including one with the power to regulate commerce.

In 1785, Madison proposed a Commerce Clause as an amendment to the Articles, with Washington’s strong support. “We are either a united people, or we are not,” Washington wrote. “If the former, let us, in all matters of a general concern, act as a nation which have national objects to promote, and a national character to support. If we are not, let us no longer act a farce by pretending it to be.”

Alexander Hamilton, who had served as Washington’s chief of staff in the Continental Army, explained the commerce problem this way: “[Often] it would be beneficial to all the states to encourage, or suppress, a particular branch of trade, while it would be detrimental . . . to attempt it without the concurrence of the rest.”

Madison himself wrote, regarding the failings of the Articles, that as a result of the “want of concert in matters where common interest requires it,” the “national dignity, interest, and revenue [have] suffered.”

However, Madison’s commerce amendment failed in the Virginia legislature. That led him to seek an even more radical solution scrapping the Articles altogether and replacing them with a new structure with a powerful central government whose laws would be supreme and whose powers would extend to coordinating a strategy of national commerce.

Building the Framework

As Madison explained to fellow Virginian Edmund Randolph in a letter of April 8, 1787, as members of the Constitutional Convention were gathering in Philadelphia, what was needed was a “national Government . . . armed with a positive & compleat authority in all cases where uniform measures are necessary.”

On May 29, 1787, the first day of substantive debate at the Constitutional Convention, it fell to Randolph to present Madison’s framework. The Commerce Clause was there from the start.

Madison’s convention notes on Randolph’s presentation recount him saying that “there were many advantages, which the U. S. might acquire, which were not attainable under the confederation such as a productive impost [or tax] counteraction of the commercial regulations of other nations pushing of commerce ad libitum &c &c.”

In other words, the Founders at their most “originalist” moment understood the value of the federal government taking action to negate the commercial advantages of other countries and to take steps for “pushing of [American] commerce.” The “ad libitum &c &c” notation suggests that Randolph provided other examples off the top of his head.

Historian Bill Chapman has summarized Randolph’s point as saying “we needed a government that could co-ordinate commerce in order to compete effectively with other nations.”

So, from the very start of the debate on a new Constitution, Madison and other key Framers recognized that a legitimate role of the U.S. Congress was to ensure that the nation could match up against other countries economically and could address problems impeding the nation’s economic strength and welfare.

This pragmatism imbued Madison’s overall structure even as he included intricate checks and balances to prevent any one branch of government from growing too dominant. The final product also reflected compromises between the large and small states over representation and between Northern and Southern states over slavery, but Madison’s Commerce Clause survived as one of the Constitution’s most important features.

However, the Constitution’s dramatic transfer of power from the states to the central government provoked a furious reaction from supporters of states’ rights. The Articles’ phrasing about state “sovereignty” and “independence” had been removed entirely, replaced with language making federal law supreme.

The Anti-Federalists recognized what had happened. As dissidents from the Pennsylvania delegation wrote: “We dissent because the powers vested in Congress by this constitution, must necessarily annihilate and absorb the legislative, executive, and judicial powers of the several states, and produce from their ruins one consolidated government.”

Winning Ratification

As resistance to Madison’s federal power-grab spread and as states elected delegates to ratifying conventions Madison feared that his constitutional masterwork would go down to defeat or be subjected to a second convention that might remove important federal powers like the Commerce Clause.

So, Madison along with Alexander Hamilton and John Jay began a series of essays, called the Federalist Papers, designed to counter the fierce attacks by the Anti-Federalists against the broad assertion of federal power in the Constitution.

Madison’s strategy was essentially to insist that the drastic changes contained in the Constitution were not all that drastic, an approach he took both as a delegate to the Virginia ratifying convention and in the Federalist Papers. But Madison also touted the advantages of the Constitution and especially the Commerce Clause.

For instance, in Federalist Paper No. 14, Madison envisioned major construction projects under the powers granted by the Commerce Clause. “[T]he union will be daily facilitated by new improvements,” Madison wrote. “Roads will everywhere be shortened, and kept in better order; accommodations for travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout the whole extent of the Thirteen States.

“The communication between the western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete.”

While ignoring Federalist Paper No. 14, today’s right-wingers are fond of noting Madison’s Federalist Paper No. 45, in which he tries to play down how radical a transformation, from state to federal power, he had engineered in the Constitution.

Rather than view this essay in context Madison finessing the opposition the modern Right seizes on Madison’s rhetorical efforts to deflect the Anti-Federalist attacks by claiming that some of the Constitution’s federal powers were contained in the Articles of Confederation, albeit in far weaker form.

In Federalist Paper No. 45, entitled “The Alleged Danger From the Powers of the Union to the State Governments Considered,” Madison wrote: “If the new Constitution be examined with accuracy, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS.”

Today’s Right also trumpets Madison’s summation, that “the powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

But the Right generally ignores another part of No. 45, in which Madison writes: “The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained.”

In his ruling joining with his fellow right-wing justices in rejecting the application of the Commerce Clause to the Affordable Care Act Chief Justice Roberts does mention that line from Federalist Paper No. 45. However, he spins Madison’s meaning into a suggestion that the Commerce Clause should never contribute to any controversy.

Looking to the Future

However, what Madison’s comments about the Commerce Clause actually demonstrated was a core reality about the Framers that, by and large, they were practical men seeking to build a strong and unified nation. They also viewed the Constitution as a flexible document designed to meet America’s ever-changing needs, not simply the challenges of the late Eighteenth Century.

As Hamilton wrote in Federalist Paper No. 34, “we must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. Constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs.

“Nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity.”

Indeed, the Commerce Clause was a principal power that Madison crafted to deal with commercial challenges both current to his time and future ones that could not be anticipated by his contemporaries. There also was a reason why the Framers made the power to regulate interstate commerce unlimited. They wanted to invest in the elected representatives the United States the ability to solve future problems.

In Madison’s day, the nation’s challenges included the need for canals and roads that would move goods to market and enable settlers to travel westward into lands that European powers also coveted. Always a principal concern was how European competition could undermine the hard-won independence of the nation.

Though the Framers could not have envisioned the commercial challenges of the modern world, American businesses remain under intense foreign competition today, in part, because of an inefficient health-care system that imposes on U.S. businesses the cost of health insurance that drives up the price of American goods.

Under the current system, not only do many American businesses pay for their employees’ health care while most other developed nations pay medical bills through general taxation but U.S. companies indirectly pick up the cost of the uninsured who get emergency care and don’t pay.

So, a law that makes American businesses more competitive by addressing this “free-rider” problem and by assuring a healthier work force would seem to be right down the middle of the Framers’ intent in drafting the Commerce Clause.

No Practicality

In contrasting Justice Ginsburg’s opinion on the Affordable Care Act with Scalia’s dissent, one of the most striking differences is how the Framers are understood: Ginsburg sees them as pragmatic problem-solvers, while Scalia envisions them as rigid ideologues placing individual freedom above practical goals.

The core of the Scalia-written dissent is that the Constitution is NOT about solving problems, but rather following the most crimped interpretation of the words. Indeed, he ridicules Ginsburg for viewing the founding document as implicitly intended to give the elected branches of government the flexibility to address national challenges.

Yet, there was little question from either side that virtually every American participates in the commerce of health care from birth to death and that the health-insurance mandate in the Affordable Care Act was intended by Congress to regulate what is clearly a national market.

In the dissent, the four right-wing justices acknowledged that “Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercis­ing the powers accorded to it under the Constitution. The question in this case, however, is whether the complex structures and provisions of the Affordable Care Act go beyond those powers. We conclude that they do.”

Scalia noted that Ginsburg “treats the Constitution as though it is an enumeration of those problems that the Federal Government can ad­dress, among which, it finds, is ‘the Nation’s course in the economic and social welfare realm,’ and more specifically ‘the problem of the uninsured.’

“The Constitution is not that. It enumerates not federally soluble problems, but federally available powers. The Federal Government can address whatever problems it wants but can bring to their solution only those powers that the Constitution confers, among which is the power to regulate commerce. None of our cases say anything else. Article I contains no whatever-it-takes-to-solve-a-national-­problem power.”

The right-wing justices insisted that the power to “regulate” commerce couldn’t possibly cover something like a mandate to buy health insurance.

Chief Justice Roberts in his own opinion, which rejected use of the Commerce Clause but then justified the Affordable Care Act under the Constitution’s taxing powers decided that some of the definitions of the word “regulate” couldn’t be applied because they were not the first definitions in the dictionaries of the late Eighteenth Century.

However, in an earlier opinion upholding the Affordable Care Act, conservative U.S. Appeals Court Judge Laurence Silberman noted that “At the time the Constitution was fashioned, to ‘regulate’ meant, as it does now, ‘[t]o adjust by rule or method,’ as well as ‘[t]o direct.’ To ‘direct,’ in turn, included ‘[t]o prescribe certain measure[s]; to mark out a certain course,’ and ‘[t]o order; to command.’

“In other words, to ‘regulate’ can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term ‘commerce’ limited to only existing commerce. There is therefore no textual support for appellants’ argument” that mandating the purchase of health insurance is unconstitutional.

However, in Roberts’s ruling, the Chief Justice threw out certain definitions for “regulate”, such as “[t]o order; to command”, saying they were not among the top definitions in the dictionaries of the time. Roberts wrote, “It is unlikely that the Framers had such an obscure meaning in mind when they used the word ‘regulate.’”

Needing Health Care

Scalia and Roberts also adopted a very narrow concept of participation in the health-care industry. Though it’s undeniable that virtually all Americans from birth to death receive medical care of various types and at different times, the Court’s five right-wing justices treated the gaps between those events as meaning people are no longer in the health market.

Roberts wrote: “An individual who bought a car two years ago and may buy another in the future is not ‘active in the car market’ in any pertinent sense. The phrase ‘active in the market’ cannot obscure the fact that most of those regulated by the individual mandate are not currently engaged in any commercial activity involving health care, and that fact is fatal to the Government’s effort to ‘regulate the uninsured as a class.’”

But, as Ginsburg noted in her opinion, this comparison is off-point, because a person can plan for the purchase of a car but often is thrust into the medical industry by an accident or an unexpected illness.

Over and over again, the five right-wing justices behaved as if they started out with a determination to reject a constitutional justification under the Commerce Clause and then dreamt up legal wording to surround their preconceived conclusion. In doing so, they treated the Constitution as some finicky legal document rather than what the Framers had intended, a vibrant structure for solving national problems.

And, as for the Framers’ views regarding mandating American citizens to buy a private product, one can get a good idea of their attitude by examining the actions of the Second Congress in passing the Militia Acts, which mandated that every white male of military age buy a musket and related supplies. That Congress included actual Founders, such as James Madison. The law was signed by George Washington, another Founder. [See Consortiumnews.com’s “The Founders’ Musket Mandate.”]

So, despite what today’s Right wants you to believe, the Framers were not hostile to a strong central government; they were not big advocates of states’ rights; they were not impractical ideologues contemplating their navels or insisting on some hair-splitting interpretation of their constitutional phrasing.

Rather, they were pragmatic individuals trying to build a nation. They wrote the Constitution specifically so the country could address its pressing problems and match up competitively with America’s foreign rivals. Since Justices Scalia, Kennedy, Thomas and Alito don’t have this real history on their side, they apparently saw little option but to make up their own.

Investigative reporter Robert Parry broke many of the Iran-Contra stories for The Associated Press and Newsweek in the 1980s. You can buy his latest book, America’s Stolen Narrative, either in print here or as an e-book (from Amazon and barnesandnoble.com).

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15 comments for “How Scalia Distorts the Framers”

dahoit

February 14, 2016 at 1:11 pm

Attacking his one?good vote,sounds awful stupid to me.The ACA is a corporate sellout,with astronomical price increases now happening,huge deductibles,and a bureaucratic disaster for consumers.
Scalia might have voted against it for some other reason,but he still voted the right way.
This is emblematic,the vote,of the duality of our mammon worshipping political scum class.The ideology is do re mi.Honor is dead.

MHarvill

February 15, 2016 at 4:58 pm

I loathed the man, but you’d know he had more than “one good vote” had you bothered following the news:

Florida v. Jardines: The top court ruled 5-4 in 2013 that the authorities usually need a warrant to use a drug-sniffing dog outside a residence to determine if there are drugs on the inside.

Kyllo v. United States: The high court declared 5-4 in 2001 that scanning a house with a thermal-imaging device without a warrant was unconstitutional

Jones v. United States: The court decided 5-4 in 2012 that law enforcement officials generally need probable-cause warrants to place a GPS tracker on a suspect’s vehicle

Maryland v. King: The Supreme Court ruled 5-4 in 2013 that states may take DNA samples from arrestees. In dissent, Scalia wrote that cheek swabbing was unconstitutional, saying, “Todayâ€™s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane

Brown v. Entertainment Merchants Association: The Supreme Court ruled 7-2, in a 2011 decision where Scalia wrote the majority opinion, that a California law restricting the sale of violent video games violated the First Amendment rights of minors.

holdbar

February 14, 2016 at 3:49 pm

“Some Supreme Court watchers even suspect that it may have been Scaliaâ€™s intemperate tone that pushed Chief Justice John Roberts from a position of initially rejecting the Affordable Care Act outright as an unconstitutional use of the Commerce Clause to supporting its constitutionality under congressional taxing powers.”

No. Roberts was being politically expedient.

Striking down Obamacare would have left the US with no healthcare plan (ie, the Republican plan) and opened the door for Medicare-for-all.

Many poor, uneducated whites would have lost their healthcare and finally realized that the government did improve their lives and the Republicans took that away. They may have turned to the Democratic party in the next election.

The right-wing of the Supreme Court are nothing more than political operatives.

Brian

February 15, 2016 at 9:53 pm

Let’s think about this a little deeper. The problem with the healthcare system is not a lack of access to it. The problem is that people in this country are incredibly unhealthy. Let’s look at the food we eat and say hmâ€¦ what’s in this that could make us sick. Let’s look at our sedentary lifestyles. Let’s look at the science that influences what food the public wants and say who is funding this?

After we solve the more important problems then we can start talking about providing healthcare to the people that deserve it (i.e children with cancer, people with disabilities). People that need healthcare through no fault of their own.

alexander

February 14, 2016 at 7:26 pm

Dear Mr Parry,

Chief Justice Roberts is correct in assuming the Affordable Care Act functions as a tax.

But people are not being taxed to receive health care,Mr Parry, they are being taxed to purchase insurance from a private company to pay for health care.

Since there is no regulation upon the insurance industries , as to how much they can charge and how much profit they are entitled to make, Obamacare becomes a form of “taxation without representation”.

The american people are “forced” to pay for insurance no matter how much the insurance companies can gouge us if they choose to?

Is that fair to the people ?

It seems this, above all, is the fatal flaw in the Affordable Health Care Act….Something that just might, in the end,make it quite un-affordable to all.

Steven Burden

February 14, 2016 at 9:10 pm

“The Framers junked the states-rights-oriented Articles of Confederation in favor of the Constitution because they wanted to solve the nationâ€™s problems.” Wrong. They usurped the call for a convention–which Congress authorized to correct some shortcomings in the Articles–to meet in secret sessions to create a replacement government that transferred political power from the sovereign states to a central government. It was a counter-revolution by the monied aristocrats who wanted power centralized so they could better control it in their own interest. In short for centralized and controllable political power. Read Jensen’s ‘The New Nation’ for an in-depth look at the conditions under the AoC.

I won’t go into any of your other errors because they are too numerous to include in simple comments. Read Rothbard’s ‘Conceived in Liberty’ Vol 4 and Hummel’s Epilogue in ‘Emancipating Slaves, Enslaving Free Men’ as well as ‘The New Nation’ to understand the cataclysmic error that is the U.S. Constitution.

vvvvv

February 15, 2016 at 9:48 am

This, and the red pilling doesn’t end there.

David Smith

February 15, 2016 at 2:53 pm

The ” states” were never sovereign, and to assert they ever should be is absurd. There are three levels of government: Local( county or city), Provincial ( departments, prefectures, provinces, US ” states” ) and National ( any sovereign nation). This is a very practical paradigm found worldwide and through thousands of years. Historically, the Thirteen Colonies occupied the Provincial position in relation to England which occupied the National position, but a historical argument is unneccesary. Basic valid propositions of political philosophy nullify your absurd opinion.

BradOwen

February 15, 2016 at 4:21 pm

Thank you!

Henry Locke

February 15, 2016 at 9:56 am

People forget that the thing called ” the bill of rights” was put in place by anti-federalists. The Articles were never repealed, they still exist technically side by side. This wasnt the only quiet revolution or counter-revolution. There have been several since.

Also, if it’s not in the constitution it’s not real law. Federal laws do not apply to the people, only Constitutional ones. Fed gov is like fed reserve, separate entity. Ask yourself how many things are “illegal” without amendments like prohibition. Pro tip: they arent.

David Smith

February 15, 2016 at 5:10 pm

Henry Locke, you are unneccesarily coy. I detect the crackbrained aroma of the Sovereign Citizen/Freemen On The Land fallacy in your comment, but I could wrong. Feel free to invoke Admiralty Law and Contract Law, but be forewarned, you will be walking into an intellectual ambush.

David Smith

February 15, 2016 at 4:20 pm

Scalia was actually an extremist proponent of what he might call federal government overeach, but he went much further, to a sort of Supreme Court Caliphate. In 2000, he supported an injunction to nullify State of Florida authority in the election, in favor of Federal authority, on a minor matter. Because of the Electoral College and proportional representation in Congress based on individual state territoriality, administering Federal elections is the just and proper sphere of the individual states, except in cases of fraud or civil rights, where the Federal Government can certainly intervene. Scalia did not care about ” strict construction” or “states rights” in this case. In the case of the ACA, Congress, due to proportional representation, represents concretely the will of the fifty states in the Federal Government, and the ACA was OK with Congress. Scalia did not care, and along with Roberts, employed “tortured argumentation” by hair splitting over the definition of the word “regulate” in support of “strict construction” not to champion “states rights” over “federal over each”, but to champion the power of the Supreme Court to overrule anyone or anything anytime for any reason, or no reason. Scalia was an extremist proponent of Supreme Court overeach, or more accurately, the overeach of any five members of the Supreme Court.

Ethan Allen

February 15, 2016 at 8:38 pm

Re: David Smith Feb 15 @ 4:20 PM
I agree with both the substance and tone of your opinion regarding the extremist ideological hypocrisy manifested in the writings of Scalia, Roberts, Thomas, Alito and too often Kennedy; along with many others currently occupying seats on regional appellate and district federal courts.
In Robert Parry’s prescient article, thoughtfully republished here in the wake of Scalia’s sad demise, he shines important informative insight into the problem of seating those who attempt to fashion national law to comport with their preconceived personal ideological beliefs under the rubric of “strict construction” or “originalism”. Mr. Parry reminds the reader of this departure from viable jurisprudence by historical example, saying in pertinent part:

“However, what Madisonâ€™s comments about the Commerce Clause actually demonstrated was a core reality about the Framers â€“ that, by and large, they were practical men seeking to build a strong and unified nation. They also viewed the Constitution as a flexible document designed to meet Americaâ€™s ever-changing needs, not simply the challenges of the late Eighteenth Century.

As Hamilton wrote in Federalist Paper No. 34, â€œwe must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. Constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs.

â€œNothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity.â€

right wing shright wing – the obamacare thing is a ripoff of everyone. it was written by and for the insurance companies and costs you more money than it cost you before to be insured, and other problems.

What he originally offered the voters was essentially medicare for everyone, and we didn’t get it.

Abe

February 18, 2016 at 5:39 pm

Referring to Americaâ€™s mass internment of people of Japanese ancestry during the Second World War, current Supreme Court Justice Antonin Scalia declared: â€œ[Y]ou are kidding yourself if you think the same thing will not happen again.â€

Scalia made these comments during a speech to students at the University of Hawaii on February 3. He was asked about the Supreme Court case of Korematsu v. United States (1944), which involved a legal challenge by two Japanese Americansâ€”Fred Korematsu and Gordon Hirabayashiâ€”to orders to report to mass internment camps during the war. On appeal, the Supreme Court infamously declared the internment camps constitutional on the grounds of â€œmilitary urgency.â€

Hawaii, where Scalia was speaking, was one of the many states in which internment camps were established.

â€œWell of course Korematsu was wrong,â€ Scalia said, in comments reported by the Associated Press. â€œAnd I think we have repudiated it in a later case. But you are kidding yourself if you think the same thing will not happen again.â€

Scalia invoked the Latin expression, â€œInter arma enim silent legesâ€ (roughly, in times of war the law is silent).

â€œThatâ€™s what was going onâ€”the panic about the war and the invasion of the Pacific and whatnot. Thatâ€™s what happens. It was wrong, but I would not be surprised to see it happen again, in time of war. Itâ€™s no justification, but it is the reality,â€ he said.

While Scaliaâ€™s remarks took the form of nominal disapproval of the Korematsu case and mass internments, his shoulder-shrugging at â€œthe realityâ€ of future mass internments should be taken as a serious warning.

Since Scaliaâ€™s arrival on the Supreme Court in 1986, he has been a leading figure in the ongoing rollback of democratic and social rights. Some of the highlights of Scaliaâ€™s career include Stanford v. Kentucky (1989, upholding the death penalty for crimes committed by 16 and 17-year-olds), Bush v. Gore (2000, halting vote counting and installing George W. Bush as president), and Citizens United v. Federal Election Commission (2010, removing limitations on corporate spending during elections), among many others.

There is an element of arrogant pageantry and provocation to everything Scalia does, both in his official and individual capacities. In 2004, Scalia famously went on a hunting trip with Vice President Dick Cheney while a case involving the latter was pending before the Supreme Court, in flagrant violation of judicial ethics. Scaliaâ€™s contempt for the principle of separation of church and state is frequently on display, as in a 2012 speech arguing that the position that â€œour Constitution forbids anything that favors religion over non-religion is a lie.â€

Scaliaâ€™s pronouncement on the inevitability of mass internment borrows not a little from fascist jurisprudence. Nazi jurist Carl Schmitt developed the theory that a national emergency could constitute a â€œstate of exceptionâ€ (Ausnahmezustand) pursuant to which the executive may ignore the rule of law, the Constitution, and democratic rights. Similarly, Scalia imagines a scenario in which mass incarceration in the US would technically be unconstitutional, but â€œin times of war the law is silent.â€

With these comments, Scalia is effectively signaling that if concentration camps are established in the US (Scalia would â€œnot be surprisedâ€), the Supreme Court will stand aside and acknowledge itself powerlessâ€”doubtless with references to â€œnational security,â€ â€œstate secrets,â€ the â€œseparation of powers,â€ the â€œwar on terror,â€ and â€œdeference to the executive in wartime.â€

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In the aftermath of the September 11, 2001 attacks, as many as 1,200 people were illegally rounded up and detained simply for being Arab or Muslim. The National Defense Authorization Act (NDAA) for Fiscal Year 2012 expressly gives the military the power to seize and imprison any person anywhere in the world, including within the US, on â€œterrorâ€ allegationsâ€”without charges, evidence, or trial.

According to documents released by Edward Snowden, the US government is already using its mass spying apparatus to construct â€œpolitical profilesâ€ of individuals. Last year, the city of Boston was placed under military lockdown, with families ordered to â€œshelter in placeâ€ while armed commandos conducted house-to-house searches.

In this context, Scaliaâ€™s comments doubtless reflect current moods and discussions now taking place within ruling circles. If anyone does not think it is possible for mass internment camps to be set up within the USâ€”to use Scaliaâ€™s words, â€œyou are kidding yourself.â€